From Casetext: Smarter Legal Research

Patron v. Patron

Appellate Division of the Supreme Court of New York, First Department
Jul 6, 1976
53 A.D.2d 822 (N.Y. App. Div. 1976)

Opinion

July 6, 1976


Judgment, Supreme Court, New York County entered May 10, 1976, unanimously modified, on the law and on the facts, to the extent of vacating the award for counsel fees, and as so modified, affirmed, without costs and without disbursements. This record reveals that only two years ago defendant-wife received $41,000 net, in cash, from the sale of a co-operative apartment. Furthermore, defendant does not submit an affidavit as to her ability to pay counsel fees. In the only affidavit submitted, counsel states, in conclusory fashion, that the moneys were needed for living expenses, but never asserts that the defendant was actually unable to pay counsel fees. Further, while likelihood of success is no longer an absolute prerequisite for an award of counsel fees (see Domestic Relations Law, § 237), in the exercise of its discretion, the court may consider it a factor (Martin v Martin, 28 A.D.2d 897). Here, clearly there is no defense to the action for divorce. Under these circumstances it would be improper to saddle the plaintiff with the obligation to pay $3,000 in counsel fees in addition to the $12,500 he was required to pay in a prior divorce action brought by defendant which was adjudicated in plaintiff's favor. Before counsel fees are awarded there must be a showing of necessity or inability to pay. In Kann v Kann ( 38 A.D.2d 545), this court stated: "Counsel fees are awarded in a matrimonial action in order to insure that an indigent wife has legal representation. If she is able to pay for her own counsel, no award may be made." (See also Winter v Winter, 39 A.D.2d 69, affd 31 N.Y.2d 983.)

Concur — Stevens, P.J., Markewich, Murphy, Capozzoli and Nunez, JJ.


Summaries of

Patron v. Patron

Appellate Division of the Supreme Court of New York, First Department
Jul 6, 1976
53 A.D.2d 822 (N.Y. App. Div. 1976)
Case details for

Patron v. Patron

Case Details

Full title:IRVING PATRON, Appellant, v. GOLDA PATRON, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 6, 1976

Citations

53 A.D.2d 822 (N.Y. App. Div. 1976)

Citing Cases

Williamson v. Williamson

Plaintiff does not contend that the amount fixed was unreasonable. Rather he contends that the proof adduced…

Tanner v. Tanner

Finally, as to the trial court's award of $2,500 in counsel fees to defendant, we must reverse. The award of…